1.3: Water Rights
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In order to understand the types of water rights that you’ll find in California, you’ll have to take a bit of a trip back in time, not just in California history, but in British history as well. You will be able to apply what you have learned about surface and groundwater.
After reading this section, you should be able to:
- Distinguish between surface water and groundwater rights
- Describe types of water rights found in California
- Analyze a situation involving water rights to determine which rights should prevail
You probably recall that California was not always a state within the United States. For many years, it was a settlement of the Spanish government, and later, the Mexican government. Settlements of the Spanish and Mexican governments have pueblo rights to both the surface and groundwater within the settlement limits. These rights are considered to have the highest priority compared to all other right types and cannot be lost.
The City of Los Angeles has exercised pueblo rights several times in its history, illustrating interesting features of pueblo rights:
- A pueblo water right can increase in quantity as the population increases. As the population of Los Angeles has increased, the pueblo water right to flows of the Los Angeles River as well as to groundwater have increased in terms of quantity;
- A pueblo water right can be extended to newly annexed areas of the original pueblo, such as when the City of Los Angeles annexed the San Fernando Valley
You can see how pueblo water rights are extremely encompassing and useful.
Exist because of historical affiliation with Spain and Mexico
Exist because of streamside location
Can increase in quantity based on population or area annexed
Only beneficial and reasonable use (not wasteful)
Shifting continents for a moment, we will explore the idea of riparian rights. In English common law, a riparian right (riparian means “streamside”) is the right to use surface water because you own property that is adjacent to it. This means that if you bought a home that was adjacent to a stream, you would have the right to use the water from it. You could only use the water that was naturally flowing from the stream, not water from upstream or downstream that you channeled into your land. If you lived one street further away and didn’t own any property adjacent to the stream, you would have no riparian rights. Riparian rights are not quantified, so if you owned that house on the stream, you may only use as much water to make reasonable and beneficial use of it.
Now taking what you’ve learned about pueblo water rights and riparian rights, let's shift back to California to the mid-1800s when gold mining was thriving. An appropriative right stems from mining practices in which miners worked on public land using the water to dislodge soil to expose gold. Often, water had to be channeled a distance from its origin to where it was used. This was considered an appropriation of water. Miners literally posted a notice about their diversion of water to stake a claim to that water. Whereas riparian rights are not quantitative, an appropriative right is a specific amount of water for a specific purpose in a specific place. If there is not enough water for all appropriators, the ones with the older appropriations get their water first.
The most famous legal case involving surface water rights is Lux v. Haggin (1886), which established the existence of both riparian rights and appropriative rights and the relationship between the types of rights. In this case, Haggin owned the upstream Kern Valley Land and Water Company, which diverted water for irrigation. Because Haggin did not own land that was adjacent to the water, he was exercising appropriative rights and not riparian rights. Miller-Lux owned downstream land that was adjacent to the Kern River and exercised riparian rights. During a drought, Haggin continued to use upstream water and cattle owned by Miller-Lux died due to lack of available water. Miller-Lux sued Haggin. The primary question, in this case, was whether an upstream appropriator could divert water in a way that hurt a downstream holder of riparian rights. In a surprising outcome, the California Supreme Court ruled that appropriators (Haggin) could have senior rights if the rights were established prior to downstream riparian use.
In Herminghaus v. Southern California Edison (1926), riparian and appropriative rights faced off again. Herminghaus was using riparian rights to irrigate by letting water from the San Joaquin River flood his crops. Southern California Edison wanted to build an upstream power plant using appropriative rights. The California Supreme Court ruled that downstream riparian use had the right to the entire flow of the San Joaquin River for flood irrigation. In other words, the California Supreme Court ruled that the downstream riparian right trumped the appropriative right, which meant Southern California Edison received no water rights.
Currently, appropriative rights are governed by a “first in time, first in right” philosophy and regulated by the State Water Resources Control Board. A “first in time, first in right” philosophy means that if you are using the water first, you have seniority in terms of water use. In times of water shortage, you will get your water first. Much like you saw in the previous court cases, you do not need to own the land in order to have an appropriative right to water. However, you do need to use the water in a reasonable and beneficial way with an appropriative right.
While surface water rights have hundreds of years of history, groundwater rights are relatively recent and currently changing in California. Currently, in California, the Sustainable Groundwater Management Act is driving the management of groundwater in a much more deliberate fashion. Basins in California have been ranked according to their priority for the development of a groundwater management plan into high, medium, and low priority. Basins with high ranking are currently developing plans for agency formation.
Groundwater rights can be overlying or appropriative. Remember your streamside house? It had riparian rights to use water from the stream. You would also own overlying rights and the rights to drill a well and pump water to use water on your own land. If your neighbor behind you wanted to pump water to take the water off of the land, he would be using appropriative rights. Appropriative rights in groundwater are similar to rights in surface water. “First in time, first in right” means that groundwater appropriators are evaluated in terms of when they started using the water.
Although groundwater and surface water rights have some of the same names, it is important to note that they are managed as if they are not related. For surface water rights, you can have pueblo water rights if the land was originally a Spanish or a Mexican settlement, riparian rights if you are using the water streamside and appropriative rights if you are using the water away from the source. For groundwater rights, you can have overlying rights or appropriative rights. From studying the water cycle, you already understand that surface water and groundwater are related. It would make sense if their rights were connected rather than treated as separate entities.
- You own a home and would like to dig a well in the backyard. What type of water rights would be involved?
- You would like to run a pipe from your neighbor’s creek to your home to engage in flood irrigation. What types of rights are involved? What issues might come up?
- When might you have a surge in water rights disputes?
Appropriative right—Right to move water from its source; quantities for a specific purpose in a specific location; often called “first in time, first in right” rights
Overlying rights—Groundwater rights for water underneath the land
Pueblo rights—Rights that pueblos and settlements of the Spanish and Mexican government have for surface and groundwater rights; pueblo water rights can increase in quantity as population increases and can be extended to newly annexed areas
Riparian right—Streamside right to surface water